Checking in

Today we’re looking at things you might be wondering about the Supreme Court of Canada as we kick off the fall session. Hearings start next week, so it’s a good time to look at what the Court’s been up to this year and what’s to come.

This edition is coming to you from Portugal, where I’m currently enjoying my honeymoon. I won’t be sending out a newsletter next week, but you can expect Hearsay back in your inbox on October 16.

— Dylan Gibbs

• A year-to-date report card

• Next week’s appeal hearings

• Passenger rights

STATUS CHECK

The modern SCC — more writing, less decisions?

The SCC had a pretty sour start to the year. The Court released so few decisions that some people wondered whether it was still in the business of making law.

The drop was somewhat predictable — the Court doesn’t hear that many cases these days. But the judges were also sitting on a major backlog of reserved decisions that just never made it out the door.

Thankfully — for anyone anxious about the SCC’s daunting pile of unfinished work — things are looking up as we head into the fall session. The Court released a steady flow of decisions before summer break, bringing the reserve count down below average.

And that same steady flow has the Court on pace to publish a more respectable number of decisions this year. 2024 is looking a lot like 2022, which would be a healthy bounce back from last year’s all-time low.

But it’s not all roses if you care about our top court’s influence. We’re still a long way off from pre-COVID numbers. And with the Court hearing fewer cases, don’t expect an influx of decisions any time soon.

If you’re hunting for an upward trend, you’re better off looking at decision length. This year hasn’t exactly been a beacon of brevity.

And as much as I’d like to see the Court buck that trend in favour of writing more digestible decisions, it seems to be a byproduct of the Court’s current composition. Some judges are just more detailed than others.

At least they’re leaving plenty of room for a newsletter that cuts to the chase.

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LOOKING AHEAD

Next week’s hearings

The Court is kicking off the fall session with a criminal law focus. But if you’re in the mood for something else, you can at least look forward to the decision coming out on Friday. Airlines argued that Canada’s rules for cancellations, long delays, and lost baggage violate our international commitments. If the airlines come out on top, it would narrow passengers’ rights to compensation for international travel gone wrong.

• There’s a more detailed breakdown in a prior edition of Hearsay if you’re looking for a primer.

Here’s what’s up for next week:

1. How broad is the presumption of innocence?

   JHS v. Saskatchewan, 2022 SKCA 144

The session’s first hearing covers inmate discipline. The John Howard Society argues that correctional facilities need to prove inmate disciplinary offences beyond a reasonable doubt. That’s already how it works for federal inmates, but Saskatchewan’s provincial facilities punish inmates when it’s more likely than not they committed an offence.

Given the harsh consequences inmates can face for disciplinary offences — like segregation and loss of early release credits — JHS says the Charter demands a higher bar. The Saskatchewan Court of Appeal didn’t see it the same way.

2. How fit is fit?

   R. v. Bharwani, 2023 ONCA 203

This one’s about the test for deciding whether a mentally ill accused can stand trial. Some people have criticized the Supreme Court for setting the bar too low, with a test that allows most accused to proceed to trial even when they’re unwell.

The Ontario Court of Appeal put some gloss on the Supreme Court’s test for fitness, but it didn’t help Mr. Bharwani. He’s arguing on appeal that an accused should only face trial if they can make rational decisions that serve their best interests.

The second issue in this case is about the test for an NCR verdict. That one’s more fact-driven — but there’s an interesting twist.

Several psychiatrists considered Mr. Bharwani not criminally responsible for murder because of his mental state. The Crown’s expert disagreed. Who was the expert? The same doctor whose work the Ontario Court of Appeal tore apart back in May.

There’s no reason to think Dr. Woodside’s work was shoddy in this case, but his new reputation sure doesn’t help the Crown.

3. How suspicious is a bulletproof vest?

   R. v. Sabiston, 2023 SKCA 105

The week’s final hearing is a fact-driven appeal as of right. The trial judge accepted that police can reasonably suspect criminal activity when they see someone wearing a bulletproof vest. One judge at the Saskatchewan Court of Appeal didn’t see anything wrong with that conclusion, but the majority said police made too big of a leap.

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